As Assistant Principal McDowell decided what to do with D.H., a 7^th grade boy, here’s what he already knew: 1) marijuana had been found on three other 7^th grade boys that morning; 2) one of those boys fingered D.H., soon to be known as “the plaintiff;”  3) one of the 7^th graders had hidden the weed in his underpants—in fact, Mr. McDowell believed (mistakenly, as it turned out) that two of them had concealed the marijuana in their U-Trou.

What to do?  How extensive of a search would you conduct?

After D.H. denied having any drugs, Mr. McDowell ordered him to empty his backpack, which the boy did. Nothing there.  Next: take off your shoes, empty your pockets and take off your shirt and pants. Still nothing.  Now the boy is standing in the A.P.’s office in his boxer shorts.

What happened next is in dispute. The boy says that the A.P. told him to drop his drawers to his ankles.  The A.P. says he only told the boy to pull out the elastic waistband of the boxers.  Believe it or not: the personal liability of the A.P. will turn on which version of that story turns out to be true.  The 11^th Circuit held that if the boy was, in fact, instructed to drop U-Trou to the floor, then the A.P. would be held personally liable for a constitutional violation.

There are some key lessons to be learned from this case.

1. A strip search is a “categorically distinct” type of search. The court says that it is a “quantum leap” to go from outer clothing and backpacks to “exposure of intimate parts.”

2. To be legal, any search of a student must be “justified at inception” and “reasonable in scope.” A search might satisfy the first standard but not the second.  That’s what happened here.

3. Don’t ever conduct a strip search of a student in the presence of other students. That day in the office there were three other students present. The court repeatedly mentioned the presence of the other students as a key factor in the decision.

While McDowell’s strip search of D.H. was justified at its inception, we readily conclude that forcing D.H. to strip fully naked in front of his peers was unconstitutionally excessive in scope.  Even where a student strip search is justified at its inception, the 4^th Amendment requires the execution of the search to be reasonable in scope.

So the search was unconstitutional.  The A.P. violated the boy’s constitutional rights. And yet, he will not be held personally liable if the fact finder (judge or jury) determines that the instruction was to pull out the waistband, rather than to drop the underpants to the ground.  That’s because school officials are immune from liability unless they violate legal standards that are “clearly established.” The court said it was “clearly established” that you can’t make a kid drop his drawers to his ankles in front of his peers. But it is not “clearly established” that it’s illegal to make that student pull out the elastic waistband on his boxers.

On such subtle distinctions cases are decided.

The case of D.H. v. Clayton County School District was decided by the 11^th Circuit Court of Appeals on July 29, 2016.  We found it at 2016 WL 4056030.

DAWG BONE: IF THE CASE HINGES ON HOW FAR DOWN THE U-TROU DESCENDED, YOU ARE ON SHAKY GROUND.

File this one under:  SEARCH AND SEIZURE

Tomorrow: Is burping in class a criminal offense?

The Supreme Court decided long ago that school officials occupy a place that is somewhere in between the parents and the police. They didn’t quite put it that way in the case of New Jersey v. T.L.O., but that was the basic idea. Many of you are familiar with that case. It’s the case where the Supremes held that the  4^th Amendment applies in the school setting, but not as strictly as it does to the police.  The case arose when Assistant Principal Choplick (is that a great name for an A.P., or what?) poked around in the purse of young T.L.O., whose real name we may never know. Looking for cigarettes, Choplick found evidence of drug dealing instead.  T.L.O.’s lawyer argued that the search was illegal because there was no warrant.

The Supreme Court held that school officials don’t need a warrant. They have to act reasonably, though.  They have to have a “reasonable suspicion” that the search will uncover some evidence of a violation of school rules.  Choplick’s search was legal.

Thus there is a spectrum with regard to a student’s right to privacy.  At one end are the parents. If they have the courage to poke around their teenager’s bedroom, there is no law that can stop them.  Children have no right of privacy as to their parents. On the other end of the spectrum we have the police.  When they conduct a search, they must fully comply with the 4^th Amendment.  This generally involves a warrant, although there are numerous exceptions to that, too complicated to go into on this hot July day.

Then you have the school officials, somewhere on the privacy spectrum between the parents and the cops. They don’t need a warrant; but they can’t just arbitrarily snoop around a student’s personal belongings.

New Jersey v. T.L.O. was decided thirty years ago—long before cell phones.  But its principles are still valid.  Moreover, numerous courts have held that the search of a cell phone is just that—it’s a “search.” That means the 4^th Amendment applies.  That means there has to be some reasonable basis for the search.

So the answer to today’s question is “yes.”  It is risky to search the contents of a student’s cell phone.  Students, like all of us, have a lot of private, personal information on their cell phones.  School officials should pause a moment before looking at the pictures, the emails, the texts.  What are you looking for?  Why do you think you will find evidence of a violation of school rules on the cell?   These are good questions to ask yourself before conducting any search of a student’s personal belongings, including the ubiquitous cell phone.

DAWG BONE: LOOKING AROUND ON SOMEONE ELSE’S CELL PHONE IS A “SEARCH.”  BE CAREFUL!